Prenup Examples

Property classification clauses

The meat and potatoes of most prenuptial agreements are the property classification clauses. These clauses define “who gets what” in the event of a divorce. For example, the husband gets the car, and the wife gets the jewelry. Of course, it generally gets much more complex than that, but that is the baseline idea of what a property classification clause does. 

To delve into the details a bit more, most prenups have a separate property section and a marital or community property section. These sections list out what is considered separate property (not subject to division in a divorce) and what is joint property (also known as marital or community property) and is subject to division in a divorce. Then, it explains how will that joint property be split up—50/50? According to contributions? Something else?

Another important aspect of the property classification clauses is commingling rules, appreciation and growth, and the effect of sweat and financial equity. All of these play into how property is divided and are typically addressed in a prenup. For example, what happens if one partner contributes their separate property funds to the other partner’s separate property? It’s totally up to the couple on what happens in this situation, which is another key reason customization is so important for prenuptial agreements. 

Debt allocation clauses

Most prenuptial agreements also determine ownership of debt. This may be debt that was taken on before the marriage or debt that is taken on during the marriage. Things like student loans, credit card debt, business debt, and mortgages. Some couples may opt to keep everything separate, regardless of when it was incurred. Other couples may decide that some debt is separate and some is joint. 

Spousal support (i.e., alimony) clauses

Another very common topic to address in a prenuptial agreement is alimony (also known as spousal support). Alimony is the financial support one ex-spouse pays to the other when they get a divorce. Each state has its own way of determining spousal support, so it’s always best to put the terms in a prenuptial agreement if you want to avoid a judge making the decision. 

For example, some couples may elect to completely opt out of spousal support in their prenup—meaning neither party will be able to receive financial support from their spouse in a divorce. Other couples may want to simply limit the amount of alimony. For example, putting a cap on the amount or limiting the alimony by how many years it can be paid. Another common way of addressing alimony is to only trigger it if a certain event happens—such as having children, a longer marriage, or a disability.

Some states do not allow couples to include alimony clauses, and others have strict rules around how alimony is determined in a prenup. This is another reason why there is no one-size-fits-all prenup available for every person in every state on the internet.

Inheritance clauses

A common motivator for prenuptial agreements is often the protection of future inheritances. Whether it’s a future inheritance from a parent or distributions from a trust, you are able to protect these assets with a prenuptial agreement. Generally, you include a property classification section of a prenup that explicitly says that the inheritance of one partner is their separate property.

Death clauses

What is sometimes referred to as a “death clause” is the “elective share waiver” clause. This clause effectively says that when one spouse dies, the other cannot take anything from their estate. This is important because many states have laws in place that protect a surviving spouse who is excluded from a will. For example, in a state with an elective share law, a spouse may be entitled to 1/3rd of their deceased spouse’s estate, even though the deceased spouse explicitly and legally wrote them out of the will. However, with a prenuptial agreement death clause, the spouses can override that law to ensure that the surviving spouse cannot take anything. 

Sunset clause

While prenuptial agreements by default do not have an expiration date, the parties can decide to put one in if they want to. A sunset clause effectively “sunsets” the prenup at a certain date, typically on a specific wedding anniversary. For example, the prenup might say that the prenup terminates on the 10th wedding anniversary of the parties. This is a sunset clause. When the sunset clause goes into effect, it means that if the parties were to get a divorce, the prenup will not apply, and the divorce will follow default state laws. 

Choice of law clause

A choice of law clause tells a judge which state law should apply in the event of a divorce. This is generally in terms of the divorce laws and the laws that enforce the prenuptial agreement. However, whether or not a state respects a choice of law clause varies. Most states will respect it, but that’s not always the case. 

Infidelity clause

One of the most infamous of prenuptial agreement clauses is the infidelity clause, or the “no cheating” clause. This clause can be unique to each couple, and they can customize it to make sense for their situation. But, generally, this clause says “if one party cheats, the other party gets X in the divorce.” It’s important to note that many states will not enforce an infidelity clause, but there are a handful that will. Oftentimes, couples include infidelity clauses knowing that they are unenforceable, but with the intention of setting boundaries with their partner or using it as negotiation leverage. 

What prenups usually can’t decide

Set realistic expectations. Some things cannot go into a prenup. For example, if you see a prenuptial agreement example with terms about child custody or child support, it’s highly likely that the prenuptial agreement is unenforceable, or written by AI or an inexperienced attorney. Virtually all states say that you cannot write terms in your prenup regarding child support or custody. The same goes for illegal or unlawful terms, such as tax evasion or anything requiring one party to break the law. 

Another example of this is how some states do not allow spousal support clauses to be included in prenups. Unless you are familiar with your state law, you may inadvertently include terms that are unenforceable if you try to utilize a prenup example you found.

Why any prenup examples you find online should be customized

If you find an example of a prenup and think it would make sense for you, you may want to speak with an attorney. Free prenup examples may not be customized to your situation, meaning they may not actually achieve the goals you’re looking to achieve. They also may not be enforceable or compliant with your state laws. Additionally, procedural requirements may not be obvious from a prenup example—things like financial disclosure requirements, notarization requirements, witness requirements, or timing of when the prenup must be signed. 

Using prenup examples the right way

A prenup example can be a good starting point for discussing prenuptial agreements with your future spouse. It can also be an educational tool to understand how prenuptial agreements are generally structured and written. But it’s important to understand that any old prenup example is not a substitute for creating a customized and state-compliant prenuptial agreement that you understand and feel comfortable with.